Edward Snowden speaks to the Council of Europe on improving the protection of whistleblowers

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Edward Snowden speaks to the Council of Europe on improving the protection of whistleblowers

Tuesday 24 June saw Edward Snowden’s second appearance before the Parliamentary Assembly of the Council of Europe. In April, he spoke to the assembly of Parliamentarians from 47 countries about mass surveillance. The topic of yesterdays’s session was improving protection of whistleblowers; reports on both subjects are being prepared for consideration by the Assembly before the end of the year.

At the outset of the meeting, Dutch MP Peter Omtzigt, who is preparing both reports for the assembly, noted that there had a number of technical difficulties in delivering this testimony – the video call itself was under “constant attack” – and the original intention had been to have Mr Snowden testify in person. In recent comments to le Monde Mr Omtzigt noted that this process had taken months and, while some authorities had been helpful, this effort had in the end been blocked by “some agencies from some countries.”

Edward Snowden gave extended answers to a number of questions, discussing the viability of internal channels for disclosure, the problems he faced in securing a safe haven and the need for new mechanisms that ensure the protection of truthtellers on an international level.

I think it’s critical that we need international mechanisms in these cases to distinguish between the legality of the act on national terms and the propriety of the act on global terms. For example, if a whistleblower discloses an activity to the public that the public eventually concludes was inappropriate or illegal, but at the time of the disclosure it was considered legal or appropriate – we need some method of arbitration to handle that and ensure the public right to know is not chilled by national priorities.

In many cases those protections are not provided on a uniform national basis and that raises the question of how our global society can provide an independent, international mechanism for arbitration and redress on matters that are of international public importance but do need to be handled very carefully because of the gravity of the issues involved.

A full transcript follows below

Why did you decide to disclose the activities of your employer to such a wide audience?

When you see the things that I saw there’s a real challenge where you think about how you move forward on these things because you know if I do this incorrectly, if I do this improperly, if I do this the wrong way, either the public could be harmed by overreaching, or I could not go far enough, I could not do things properly, I could make a mistake in the process and I myself could be fired, I could be removed from access, I could be jailed and the public would not know about the thigs I wanted to bring to their attention.

Now, there is a legitimate balancing act to be made here because you don’t want to say that every individual can make their own determinations. But one of the things that I think is amazing over the past year is that we’ve seen the majority of the policies that have been revealed, that have been discussed, are things that that were authorised in secret and would never have survived public review.

So when it comes to how these things were disseminated at audience, public affairs have to be known by the public to be handled. We cannot be said to be a democracy when we have lost our seat at the table of government. When citizens are reduced to the status of subjects, where we’re not active participants – where we’re affected by policies but we don’t get to have a vote on them because we’re not allowed to know about them, at least the broad outlines of the authorities that the government claims for itself – that diminishes us as a society, as a free people and as a culture. And I believe we have not just a right but a civic obligation to push back when we see lawbreaking, when we see abuse, when we see excesses of simple bad policy as public servants.

What possible alternatives to confiding the material concerned to journalists were at your disposal in order to stop the illegal activities you had come across? Was there any internal path of raising concerns about illegal surveillance and, if so, in what ways did you attempt to use them and what happened to you when you tried?

This has been a topic of wide legal debate in the United States. We’ve had a number of legal experts and fact checkers look at the government’s claim that there were so-called “proper channels” for me to go through. What they found is that there were no protected alternatives to the Fourth Estate in my case.

While government officials did claim this, people sharing my particular employment status are exempted from key whistleblower protections. And as you mentioned previously, people who work for secret services, members of the intelligence community, often face exemptions from those same sort of protections that can really complicate the picture.

If I had for example provided evidence of the activities I witnessed to a member of Congress – of my choosing rather than a certain subclass – I would risked the same Espionage Act charges that I face today. I also could have been simply fired.

Now it’s important to bear in mind that the law with which I had been charged has been violated in the past, even against protected government officials, actual salaried government employees who reported serious abuses through proper channels like Thomas Drake. Despite that personal risk, despite the fact there were no protections, I did still feel an obligation to raise concerns internally and I did so. I reported it widely to colleagues, to supervisors and in emails.

I showed and demonstrated these programmes to colleagues who were shocked and concerned by them. The response was that my concerns were not just reasonable but proper. However, the response from them was that the system was not set up in a way to resolve problems but to bury them. The intelligence community by its very nature doesn’t like oversight, it doesn’t like scrutiny. It wants to protect its operations. So rather than correcting the problem, I was advised that if I spoke up I was much more likely not to fix anything but merely to get myself in trouble.

In asking questions is the concern about the individual determinations, allowing individuals to make determinations about the lawfulness of programmes that were authorised by governments? In my case again I don’t think it sets a precedent because of the extraordinary and obvious scale of the wrongdoing that’s been revealed. You don’t to be a lawyer, or a specialist, or a top official to recognise that an order authorising the surveillance of everyone in Germany is much more likely than not to be a violation of rights.

And in the same sort of vein, it’s even more true that you don’t need a process, you don’t need a lawyer to tell you that an order for the dragnet surveillance of Americans by an American agency – indiscriminate, bulk collection that’s ongoing, every minute of every day – is a violation.

So it’s clear to me at least that the ongoing revelation of these activities, whether they were legal or not, could not survive that public review and could not survive that debate in the press. And if we had been asked we never would have authorised it in the first place. And the fundamental point that I really want to get here is that it is a subversion of democratic rule for any authority to use state secrets laws as a means to implement programmes that they know the public would never agree to authorise.

This is a particularly grave abuse in the case of certain programmes that have been revealed like Bullrun, which was published by the Guardian. That is a programme to intentionally weaken the security of critical infrastruture around the world for the purposes of enabling surveillance, both at home and overseas. Where authorities have been previously put to a public vote to ask for this sort of power, they have been rejected. It happened back in the 90s in a period called the Crypto Wars.

But then what we have seen is that even when the public says no we will not authorise this, this is not consonant with our values as a public, government agencies authorised them in secret. And they abused those authorities to avoid the review of open courts. I think that principle also applies quite clearly to forbidding the use of secrecy to conceal programmes that violate human rights.

Can you be more precise about what internal actions you took and what kind of replies you got? How many times did you try to raise it and what was the typical answer, the typical actions the NSA took on the complaints you lodged? Were those complaints formal or informal?

So this is still an ongoing process that I am working with the NSA in regard to these records and we’re going back and forth, so I don’t want to reveal everything that will come out because there’s still an ongoing debate. What I can say is that this has been an ongoing process, I’ve said this again and again and I’ve said this on oath, that I went many colleagues, and these are both people who are laterally identical to me – these are people who work under the same rules, where they work at the same level of seniority – and also vertically: to supervisors, to managers, to directors, to people who worked above me.

We’re talking about direct supervisors, we’re talking about people in positions of authority as well as the Office of General Counsel and the Office of Compliance at the National Security Agency that’s supposed to oversee these sorts of violations.

When you go to the legal bosses, typically what they’ll do is they’ll not respond or they’ll give a general response, or they will say basically ‘call me… don’t go through this in writing but call me, let’s do this verbally.’

Coworkers and supervisors, managers, people who don’t actually have the compliance role are much more forthcoming. They’re much more likely to tell you what they feel about this and when I showed them for example a programme like Boundless Informant, which is a technical programme that shows the rate of collection across the world relative to each country. It shows for example that millions of European citizens’ communications are being collected, shows that hundreds of millions of Americans’ communications are being collected and it shows that we actually collect Amercian communications at a greater rate than we do russian communications

That shocked people because they thought it was an imbalanced mission. They thought we should be targeting traditional adversaries such as Russia or China to a far, far greater degree than we were American communications. And when they found out that our tools reflected that that was not the case, they were upset and concerned. This was especially important because we saw in Congressional testimony previously in the United States that elected officials had asked for those statistics even in a general sense. They were what was called a ballpark estimate, meaning give us the numbers without precision but let us know how the numbers from one country relate to the next. How many American communications?

And the National Security Agency said that they couldn’t provide those figures because, first off, they did not have them. They did not have that capability to back those figures and, if they provided them, the mere act of providing those figures would violate Americans’ privacy rights.

What was really upsetting for people I showed this programme to was the fact that the NSA had been lying in those responses and not only did we have those capabilities, the tools already existed and the statistics wre readily available.

You have been accused of damaging national security interests. Can you tell us what precautions did you take to prevent any damage to legitimate national security interests? Are you satisfied that these precautions did prevent any actual damage taking place?

I am satisfied. What we’ve seen in the press in the last year have been stories handled by the most trusted institutions in journalism arpound the world. That they independently determined, without any input from me, any bias – I’ve removed myself from the process – that these stories were in the public interest. They made a journalistic determination that we needed to know this and that it would cause no specific or prevailing harm to national security.

Now, some might argue – reasonably – that that’s not enough, that it’s not the place of journalists to do this. So they went further, and this was at my request but I believe their practice would have borne out the same process anyway, which is that they would then consult with the government on their stories prior to publication, to allow the government an opportunity to provide guidance as to whether or not they may have overlooked some detail or any particular effect in the story that could have caused harm to national security. And then the government could explain why and the journalists could remove those details from the stories.

Because again we don’t need to know the explicit details of every surviellance operation. What this was about was giving the public the broad outlines of government policy so that we can have an informed debate and make informed choices as a democracy, as a voting public, about the kinds of spieties we want to live in and where we want to set the boundaries on our rights.

I think what we’ve seen is this has resulted in an extraordinary and exhaustive standard of care in reporting these stories and that’s been borne out by the journalists working on these stories, the institutions – the Guardian and the Washington Post – they both received the Pulitzer Prize for Public Service for their reporting, which is the highest award in American journalism.

This says not only did the individual press institutions believe they made the right call, the Fourth Estate more broadly, the press community agreed with their decision. I think ultimately, this question has been answered now by the governments themselves. Because we are now one year on from the beginning of this reporting and since then we have never seen the governments in any country point to any specific harm to any individual or any national security priority that they have any evidence for at all. After a year of that, I think it’s disingenuous to argue that if they had it, they would not reveal it.

Someone recently argued that, for example, CIA agents might have been killed because of these revelations but that the government kept their identities secret. That doensn’t really bear out given the other classified details, at least in the US press, that the government has routinely leaked for political advantage. It’s my belief that if the government of any country had any solid evidence that would stand up to scrutiny of harm being caused by these releases, that would be in the newspapers by the afternoon.

We saw something very similar to this happening to Chelsea Manning, the source for the WikiLeaks State Department cables and the Iraq War Logs. At one point the United States government claimed the publishers – big, important publishers such as the New York Times – would have “blood on their hands”. That’s an exact quote: people would die and they would have blood on their hands for publishing these documents.

But even years later, after the complete, unredacted release of the documents in a form that was much more sensitive than what the press institutions themselves printed, which was only a portion of the documents, at the trial of Chelsea Manning they didn’t provide any evidence of that either. Even though they were allowed to present classified information that could still be kept from the public, instead they decided that they didn’t need to present evidence and the mere fact of publication itself was the crime regardless of whether it was related to harm.

And I think that’s what we’re seeing again today. We’re beginning to see the precedent being set, sort of a paradigm being argued by secret services, that the mere publication of information that they have decided internally shouldn’t be published itself causes harm to the public, regardless or not any actual harm results. It’s sort of an authoritarian ideal, which can be understood but not supported by the facts.

So to respond directly, yes, I am comfortable that the publications thus far appear by all measures to have directly served the public interest and I believe to have minimised any of the speculative harms that have been put forth.

What is your response to the allegation that these disclosures have compromised the fight against terrorism and organised crime, because suspects are now aware of the surveillance they are subjected to and how they can escape it?

This is a very complicated topic. I know quite a bit about it because I have worked in the intelligence community for some time and I worked on surveillance and countersurveillance issues at one point. There are four general but fundamental weaknesses in the argument that allowing the public to know the broad outlines of the surveillance authorities that the government claims, that that surveillance is thwarted.

The first is that the mass surveillance programmes that we’re discussing today and over the last year have never been shown to be effective in the first place and noone of these mass surveillance programmes has been backed up with evidence of their efficacy. Two independent US government inquiries with total access to United States classified information found that the domestic bulk collection programmes had never thwarted even a single terrorist attack, not one.

An unclassified study on the same topic by the non-partisan New America Foundation found that even under the most flattering interpretation of the government’s claims, bulk collection had played, and I am quoting, an identifiable role in initiating, at most, 1.8% of the FBI’s investigations.

The second point, and I think this is really the bottom line, is that the argument that the United States Director of National Intelligence – the top spy in the United States – James Clapper stated in private but was printed in the Washington Post by the journalist Barton Gellman. This argument is that, regardless of their fears, terrorists and criminals simply have to communicate. They will always make mistakes and we will always catch those mistakes over time. And we will use them, we will find out their networks and penetrate more deeply on a targeted basis, deeper and deeper inside. The more they change, the more they move around, the more they have unique behaviour, the more identifiable they become and the easier they are to find.

They best example of this I think is that we’ve all known about telephone wiretaps for 100 years now, but criminals all around the world still use telephones, even though they know they can be monitored, even though they know they can be recorded. And it’s because, as a society, we need the ability to communicate. Today we know about email surveillance, we know about internet surveillance but we still all use the internet, we still all use email on a daily basis because it is critical to the functioning of our lives, our societies and our social networks.

At the end of the day, a criminal that abstains from all methods of communication, all levels of electronic interaction, and they fear that everyone they coordinate as a potential co-conspirator is in fact a government agent – they’re going to be an ineffective criminal. They’re going to be caged by their own fears, by their own concerns and that’s going to make us more secure, not less secure. If they stop communicating, that’s a win for us and it’s a win for the intelligence community. It’s not a danger to national security.

The third argument is that even if we accepted the idea that publishing even broad outlines, as we’ve seen, of the intelligence programmes, made them worthless, if us having a general understanding of how our governments perform surveillance means they don’t work anymore – which, by the way is demonstrably untrue because these programmes are still operating and if they weren’t valuable they would have stopped them – the NSA and other intelligence services, they never rely on a single method. They do not have an enumerated finite list of souces and methods for gathering intelligence.

It’s a danger for us to think of intelligence agencies as sort of a warehouse where they’ve got methods and sources sitting on the shelves and when they’ve used them all up they’re gone. Intelligence agencies are much more analagous to a factory where they create these things. Whenever they need a new one, they just invent it. They hire researchers, they hire scientists and they find a new way and that’s what we’ll do. That’s the normal function of any intelligence agency anywhere in the world, so I would not say that’s an extraordinary harm. I would say, if they’re concerned about that, we need to stop running unlawful programmes that require whistleblowers to step forth.

The fourth and final argument I would want to put before you is that we just think broadly, who are the terrorists? They’re just criminals not technical experts. These are not some kind of super-criminal class. And I can say that as a former intelligence analyst, as an NSA analyst, that the kind of disruption that these revelations have introduced into terorrist networks, the kind of fear that it injected into western adversaries is not damaging, is in fact incredibly valuable to intelligence services as it helps us uncover networks that were shielded and we couldn’t monitor. The disruption forces poeple out of hiding in a way we can monitor them.

Personally, I’ve seen terrorist communication and when you’re reading the emails of known terrorists, you’ll realise with some confidence that the people who we’re talking about – they’re disenfranchised, they’re desperate, they’re angry and they’re generally uneducated individuals who are not going to be able to simply slip out into the night without a trace, even if they want to, even if they’re trying.

They’re going to make mistakes and we’re going to see them, which leaves us in a situation where the last year’s events are basically the equivalent of setting a video camera up to watch an ant hill and then disrupting the ant hill. And as soon as the ants leave,we have the ability to go back and study, catalogue, analyse every ant that’s left and follow it to its new home. And that’s actually an incredibly important thing.

So I would say there are reasonable concerns anyone could make that these things could cause damage, but we have to remember that the way that these stories were published, and in a sense that’s borne out by the governments’ own claims, have not caused any specific harm and in fact may have caused good.

We now change to a different topic and that’s the protection you have been seeking in Russia. Do you believe that Russia is a safe haven for whistleblowers and did you make any other asylum requests and what was the reactions of the countries? If you don’t feel free to give us all the information, then we do understand on this question.

First of all I’d like to correct the record. I did not seek out Russia. I did not travel to Russia with the intention of staying. I was actually transiting through Russia en route to Latin America when the US State Department revoked my passport and froze me in place. They tried to trap me there.

While I was stuck in the airport and was unable to leave – because I didn’t have any status of residence in Russia – I applied for asylum in more than 20 countries that were not Russia. Many were western European countries. If I recall correctly, I’ve got notes but I’m not 100% sure they’re accurate, Austria, France, Germany, Iceland, Ireland, Italy, Poland and Switzerland all received applications for asylum from me.

I think it is illustrative of the position of governments at that time that each of their governments seemed to believe based on history the fact that none of them accepted my applications for asylum, none of them allowed me to travel outside of Russia, that they seemed to believe that Russia was a safer place for me as an individual than their own territory. Which I think was a great surprise to many – I know I didn’t expect to see that response.

Now shortly thereafter, when I had applied for asylum, Evo Morales the President of Bolivia had publicly discussed and appeared to be favourably considering my application for asylum. And when he left Russia, his return flight over Southern Europe was blocked – the airspace of Portugal, Italy, France and Spain I believe was closed, and it was closed only to his diplomatic aircraft, which forced him to make an emergency landing in Austria.

What was exceptional about this was beyond merely closing the airspace, once he landed the Austrian authorities requested to search his diplomatic aircraft to see if I was on it, to see if I was being ferried to Latin America, which legal experts tell me is a clear violation of international law. The UN Declaration on Human Rights grants us a right to seek and enjoy asylum without interference, and beyond that it was a violation of the diplomatic protection of the vessel. Now they waived it because I wasn’t on it, but it was a extraordinary event that I don’t think has any precedent in law or history.

In our report, we are looking for an international legal framework for the protection of whistleblowers. In your experience, what are the most important issues a legal framework should cover?

I would say the primary weakness that whistleblower laws have thus far, at least on a national basis, I’m less familiar on an international basis, failed to cover is what should happen when a whistleblower reveals secret programs that have subverted a public’s will, despite conventional or secret approval.

For instance, the government institutes a programme that the public in the past said they would not authorise or that the government has reason to believe the public would not authorise and an agent of government reveals that. Some kind of public official comes forth and says the government bypassed the public process, the democratic process and just decided to institute this programme on their own. What should happen there?

I think it’s critical that we need international mechanisms in these cases to distinguish between the legality of the act on national terms and the propriety of the act on global terms. For example, if a whistleblower discloses an activity to the public that the public eventually concludes was inappropriate or illegal, but at the time of the disclosure it was considered legal or appropriate – we need some method of arbitration to handle that and ensure the public right to know is not chilled by national priorities.

In many cases those protections are not provided on a uniform national basis and that raises the question of how our global society can provide an independent, international mechanism for arbitration and redress on matters that are of international public importance but do need to be handled very carefully because of the gravity of the issues involved.

Additionally, something we see in the United States: the law with which I have been charged with violating, the Espionage Act, provides no opportunity to make a public interest defence. I cannot argue to the public, I cannot argue to a jury of my peers, that this was done for good reasons, even if it was a technical infraction of law. Which raises a point where whether or not an act serves the public interest is not determined by the public – the ability to make that determination has been removed from public hands and assumed by a government official, a single official, a single judge. And that’s a concern because these are inherently public decisions that affect all of us.

So I would say there can be no public trials if we cannot provide fair defences, so we need to have guidelines that say the very essence of disclosing information to the public is a public act and any trial has to confront that as a defence. That’s a bar the prosecution would have to come over for it to be considered a fair trial.

And while I’m not an expert, I can’t say where things are going to go, I can’t say what things are going to look like even five years from now, I suspect that with a broader, more connected global society, where we seemingly have governments relying more and more on secrecy – not just in the United States but around the world. Recently Der Spiegel reported on documents that indicate the United States government conspired with the German government in secret to weakened the privacy laws there, we are going to see more and more of these cases where an individual steps up to try to do the right thing and we need to have some sort of reliable mechanism for weighing whether or not that ended up in the public interest. Any institution that handles difficult, complex arbitration issues – for instance the International Criminal Court – could serve as a model for that that would benefit us now and in the future.

Could you tell us more about the circumstances and your motivation. Youtook a huge risk to your personal life by disclosing this and you were well aware because of the situation of, for instance, Ms Manning. So it probably didn’t come as a surprise to you that you’re under pressure. So why did you take the action, what was your internal motivation for paying this price and disclosing anyway?

That’s an issue that everyone in government, when they see some wrongdoing, has to confront. It becomes an internal balancing act of is the expected harm to oneself going to be more or less important than the harm to the public, to our families, to our futures, to the societies that we love and support and want to build up and live in. Everybody has a boundary, everybody has a border, everybody has a limit to the level of incivility, of inhumnaity, of corruptibility, of impropriety that they can tolerate. And some level of this exists in every organisation, it’s a product of human nature.

But when it crosses a certain line, when it becomes serious wrongdoing, when it becomes widespread wrongdoing, we all have an oblogation to act. That’s something I feel very strongly and what I witnessed, over the course of my career, was the construction of a system that violated the rights not just of Americans but of people around the world – and not just constitutional rights, but human rights. It happened on a massive and unprecedented scale and it was happening entirely ins secret, without the public being allowed to know even the barest outlines of the policies.

I very strongly believed that if the public knew about these programmes, these programmes would not survive. We would consider them not only unlawful, but simply immoral. Even if they could be shown to be effective in some percentage of cases, we would reject them nonetheless in the same manner we reject torture. Because even if was torture was effective, we reject it regardless of that effectiveness. We reject it beause it is barbaric, because it is immoral, it is contrary to our basic principles as a civilisation.

Mass surveillance, where we place everybody under constant monitoring, where we watch communications, we watch what books you buy, we watch the purchases you make, we watch your travels, we watch your associations. We watch who you love and we watch who you are – we watch you develop as a person. These are not the values of western societies, they are not the values of liberal societies and I do not believe that America as a nation or the west as a culture would allow them to continue.

Beyond that, on the national basis, on the domestic basis, the specific programmes I saw were clear violations of law. The routine, continuous seizure of Americans’ communications every day, every month simply is not allowable under our constitution. We cannot authorise these programmes even under the statute.

While it’s reasonable that people could challenge my belief and that I could be completely wrong, I believe that absent any sort of protected channels to raise these concerns and get them not just addressed but debated and brought to the public attention and ultimately corrected, I had a personal duty to my country, to my government and simply to my family to do the right thing and tell people so they could make their own decision about whether these programmes were proper or improper. Right now they’re only overseen by a single rubberstamp court that has said ‘no’ 11 times out of roughly 35,000 times and where all the judges on the court are appointed by a single official. That’s not a proper substitute for a democratic public. That’s not the substitute for an informed electorate.

And while I am sympathetic to the desires of the intelligence community, I worked there for a very long time and I do everything I can to promote their interests, we have to recognise thatthe priroities of any intelligence community, the priorities of any secret service, are subordinate to the interests of a free society. I think history is beginning to bear that out. In the year since I’ve gone public, we’ve seen the European Court of Justice reject mass surveillance policies when they challenged the data retention directive. The very first open federal court in the United States to look at these programmes said it was “likely unconstitutional… almost Orwellian in scope.”

We can see, I think, and I have a high level of confidence, that these are not just violations of legal rights, they are violations of human rights. This sort of behaviour is beneath the United States. If I can do anything to improve the functioning of our government, even in a small way, even if its simply allowing people to make their own decisions, I’m willing to pay any price to do that.